Director of Public Prosecutions v Bulivou [2020] FJHC 915; HBM62.2020 (5 November 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBM 62 of 2020

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS of the Republic of Fiji,

25, Gladstone Road, Suva for and on behalf of the STATE.

APPLICANT

AND

INOKE BULIVOU of Navosai, Narere, Suva.

FIRST RESPONDENT

AND

ERONI QALILAWA of 33 Kaloa Place, Kiniya, Suva.

SECOND RESPONDENT

Counsel : Mr Shah S. for the Applicant

Mr Romanu I. for the Respondents

Date of hearing : 12^th October 2020

Date of Decision : 05^th November 2020

JUDGMENT

[1] The filed this originating summons seeking a Civil Forfeiture Order over $22,000.00 held at Totogo Police Station Exhibit Room.

[2] The police found this money in the possession of the 1^st and 2^nd respondents. It is stated in the affidavit in support that out of $22,000.00, $2100.00 was seized from the 1^st respondent and the balance $19,900.00 was in the possession of the 2^nd respondent.

[3] The applicant on 5^th July 2019 filed an ex-parte notice of motion (HBM 90 of 2019) seeking a restraining order against the respondents which was granted by this court.

[4] At the hearing the learned counsel for the respondents objected to the application on the ground that it has been filed out of time.

[5] Section 31(4) of the Proceeds of Crime Act 1997 provides as follows:

Where-

(a) property has been seized under this division, otherwise than because it may afford evidence as to the commission of an offence; and
(b) no forfeiture order has been made against the property within the period of 14 days after the property was seized and property is in the possession of the Commissioner at the end of that period,

the Commissioner shall, subject to subsections (5) and (6), arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.

[6] The seizure which is the subject matter of these proceedings was done on 19^th June 2019 and this application for forfeiture was made on 18^th March 2020 which is well outside the period prescribed by section 31(4).

[7] The learned counsel for the applicant referred to section 31(6) of the Proceeds of Crime Act 1997 and submitted that the 14 days’ time period prescribed by section 31(4) is not sufficient to take all the procedural steps provided for in the Act. Section 31(6) provides:

Where-

(a) property has been seized under this division, otherwise than because it may afford evidence as to the commission of an offence;
(b) a restraining order is made in relation to the property; and
(c) at the time when the restraining order is made, the property is in the possession of the Commissioner,

the Commissioner may apply to the court that made the restraining order for an order and that the commissioner retain possession of the property and the court may, if satisfied that there are reasonable grounds for believing that the property afford evidence as t the commission of the relevant offence or any other offence, or that the property is tainted property or terrorist property make an order that the commissioner is to retain the property so long as the property is so required as evidence as to the commission of that offence or is required to satisfy the forfeiture order.

[8] I do not find any exceptions or provisos to section 31(4) above. It is a statutory provision and we are bound to follow. Therefore, not providing sufficient time in the statute cannot be an excuse for not bringing these proceedings within the time period prescribed by law.

[9] Section 19E(1) of the Proceeds of Crime Act 1997 provides:

Subject to subsection (2), where the Director of Public Prosecutions applies to the court for an order under this section and the court is satisfied on a balance of probabilities that the property is tainted property, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the State.

[10] In paragraph 15 of the affidavit of Shailend Krishna, Detective Constable No. 3024 (in the same affidavit he has stated that he is Detective Constable No. 4993), he has averred that in the police vehicle the second respondent told D/Sgt 4654 Salacieli Tabalailai that they were about to leave for Kadavu in the next half an hour with the boat master Inoke Bulivou (the First Respondent) and Apisai Sulua to buy marijuana from a person named Manasa of Kandau. This statement is denied by the respondents in their respective affidavits.

[11] There is no evidence before this court that Detective Constable No. 4993 (or 3024) was present at the time the 2^nd respondent made this statement or he received this information from Detective Sergeant 4654 Salecieli Tabalailai. This is the only evidence available to the court to decide whether the property sought to be forfeited is tainted property. The burden is on the applicant to establish this fact on balance of probabilities. The respondents cannot be required to prove the negative. In the affidavit in support it is stated that the respondents do not have means to lawfully acquire $22,000.00. The respondents say that this money was given to them by Apasi Sulua. Apasi Sulua has made a statutory declaration stating that he gave around $20,000.00 to the 2^nd respondent to buy Kava from Kadavu.

[12] The court is therefore of the view that the applicant has failed to establish on balance of probabilities that the money seized was tainted.

[13] For the above reasons the court makes the following orders.

ORDERS

1. The originating of summons of the applicant is struck out and the application is refused.
2. There will be no order for costs.
   

Lyone Seneviratne

JUDGE

05^th November 2020